THE SUPREME COURT

BETWEEN:

1. I am happy to adopt the description of the circumstances set out by O’Donnell J., McKechnie J. and Dunne J. in their judgments. Consequently, this judgment can be quite brief. I would not wish this brevity to lead to any conclusion other than that the Court is being asked to deal with certain matters of fundamental principle in this appeal. My concern is that, while accepting there are attractions to the course of action proposed by the majority, there are, to my mind, issues of precedential importance. I do not, however, wish to be seen as critical of the views of the majority. I share their concerns as to the long delays in this case, and the possible risk of unfairness in remitting for a retrial. But, to my mind, the consequences of failure to remit are weighty, and should be preferred.

2. One concern is that, in embarking on the course of action suggested in relation to the first, “Q2” issue, the Court is constrained to give answers on questions of fact. The resolution of that issue is necessarily a factual question, or series of factual questions, and fall to be considered in light of the well-established jurisprudence of this Court (c.f. Hay v. O’Grady [1992] I.R. 210, recently applied by this Court in The Leopardstown Club Limited v. Templeville Developments Ltd., given on 11th July, 2017). A second concern is that, in substituting an award for the jury award, the Court is, in effect, carrying out a function which should, in all the circumstances, be left to a jury.

3. The Court is admittedly having to address a uniquely difficult situation, where, in truth, all the choices are invidious. The option taken by the majority, which is, to assume an answer “yes” to Question 2, and to substitute an award of damages reversing the decision of the trial jury, undoubtedly has the practical advantage of slicing the Gordian knot and finalising this inordinately long-running litigation saga. In principle, there is jurisdiction for such a course of action (s.96 Courts of Justice Act, 1924). While it is true that the “remittal for rehearing” option argued for in this judgment would mean the case will have to be entirely retried before a judge and jury some 19 or 20 years after the events in dispute, in fact, neither side has identified any irretrievable real, prejudice which would arise, other than that inevitably caused by the elapse of time itself. This judgment is, therefore, confined, first, to the “Question 2 issue”, and later deals with the question, linked to the first, of the appeal against the damages award made by the jury. This case arises under the Defamation Act, 1961, and not its successor Act, enacted by the Oireachtas in 2009. For simplicity, the appellant will be referred to as “the plaintiff”; the respondent as “the defendant”.

The Question 2 Issue

Section 22 of the Defamation Act, 1961
4. Section 22 of the Defamation Act 1961 provides:

“22. In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.” (Emphasis added)

The Role of the Jury in Defamation Proceedings
6. The role of the jury is of very ancient origin. Originally, jurors were empanelled to act as witness providing sources of information on legal issues arising in their locality. But that role evolved, and, ultimately, those empannelled became detached adjudicators both in civil and criminal disputes. Over the years there have been countless instances where, in both categories of law, jurors have stood firm as a bulwark of democracy and freedom against the power of the executive, or of other powerful interests in society. In the late 19th Century, the role of juries began to be reduced by statute. It is, of course, true that there were reasons for this, particularly in cases of legal or factual complexity, where evidence or the law might be very technical. Since 1988, juries no longer play a role in this State in determining liability and damages in personal injuries claims. (s.1 Courts Act, 1988) Juries still, however, play some role in other areas of the law. Obviously, the jury plays a fundamental constitutional role in trial of serious criminal offences. But the Oireachtas has, also as a matter of policy, sought to maintain the role of juries in two categories of civil case where there are significant constitutional values involved. I think it is necessary to proceed with great caution in any course of action which might be portrayed as diminishing the role of the jury as a fundamentally democratic and legitimate institution. This is a case where both sides are represented by leading counsel of the highest ability: there is, therefore, every indication that a retrial would be well ordered and structured. But the issue goes a little deeper: the questions at issue here are quintessentially jury questions.

7. In the first of the two categories assessed, false imprisonment, the main constitutional issue at stake is that of the liberty of the citizen. A number of false imprisonment claims are, from time to time, brought against members of the gardai. In the second category, that is, defamation, often brought against the media, the constitutional values at issue include those of citizens’ rights to their good name, and the right to freely express one’s convictions and opinions. The right to a good name, freedom of expression and public opinion are closely connected concepts, in which the concept of “the views of right thinking people” are inherently part of the test. Juries are intended to reflect the views of the public. They represent the public mind and public opinion in balancing the constitutional values embodied in statutory form. This “public dimension” is of great relevance in measuring whether a publication is actually defamatory at all; if it is, whether there is a defence to it; and if a publication is found to be defamatory, the measure of damages. The task in which a jury engages, therefore, in making determinations under s.22, is one where the legislative intent envisages the judgment of ordinary citizens should be engaged.

8. If the members of a jury reach a determination adverse to a plaintiff under s.22, they may conclude that there is a total or partial defence to an action in libel. If the jury concludes decisively against a plaintiff, and in favour of a defendant on the issue, then that defendant will have a complete defence, notwithstanding the fact that, for example, a newspaper may have published certain damaging statements of a plaintiff, which, in fact, it has been unable to establish as being true. The jury balances that which it finds to be true against what is found to be untrue: The determination is one of fact. (See Plato Films v. Speidel [1961] AC 1090). As I now seek to explain, what is in issue here are truly jury questions.

9. The jury in this case, unfortunately, left a blank after Qustion 2 set out in the judgments of my colleagues. They went on to answer Question 3, and awarded €900,000 damages to the plaintiff. In my opinion, it is unwise for the Court now to proceed and make a determination on the basis of what I think can only be inference or supposition, as to what the jury “must” have intended in so proceeding. It is true that in this case, on one interpretation, it can be contended that, in the words of the issue paper, by “proceeding” to deal with the question of damages, the jurors concluded it was unnecessary to deal with Question 2. But, there are other more disquieting possibilities. These include the not unreal possibility that the jury simply forgot or ignored the second question, and went directly to the third question from Question 1, without giving any consideration to the s.22 issue which arose in Question 2. If the jury failed to consider a key aspect of the defence case, this makes the difference between the verdict being lawful and unlawful. It may partly explain the level of the award.

10. The issue paper is to be seen as one integrated document which contains a logical series of interlocking and mutually-dependent questions, which are to be seen technically as “special verdicts” on each such question. The nature of the issue paper here was such that the questions are, to my mind, not susceptible to being “severed” one from the other, even if the questions could have been better framed. There is a logical progression from the answer to each question from the one before. If the logical progression is broken, not only the issue paper flawed, but the question arises as to whether the jury can be shown to have given a lawful verdict. To my mind, this cannot be conclusively shown; the failure of the jury to address Question 2 consequently rendered the verdict at trial irretrievably flawed, and unlawful. Because the logical progression was broken, because it is not shown they fully considered the defence, the verdict as a whole strayed into unlawfulness. Entirely accepting the practical attractions of adopting a different course, I do not think it lies within the province of this Court to remediate the situation by seeking, as it were, to place itself in the position of the jurors, and thereafter to address the question which requires answers on factual issues on the basis of how the jury must have thought and acted.

11. Counsel for the plaintiff forcefully and persuasively submitted that the answer to Question 2 is one of coercive inference, to the effect that the jury must have concluded they did not need to answer Question 2, in light of the instructions to “proceed” to Question 3 contained on the issue paper. There is some validity in this, but it does not answer the question as to whether the jury members performed the duty entrusted to them. Justice must be seen to be done.

12. The essential importance of s.22, therefore, arises in the context of the lawfulness and fairness of what is published. It goes to the question of entitlement to one’s “good name”. In the distant past, if a newspaper said of an individual that he had been convicted a number of times for dishonesty, but, on being sued, found that he had, in fact, only been convicted twice, the newspaper could not then entirely justify, because it could not prove all the words as published were true. It could not bring forward the two convictions in mitigation of damages. In theory, such plaintiff would have received damages on the footing that he had never been convicted at all. (Goodbourne v. Bowman [1833] g Bing 432 l). But this is not now the law. Although a newspaper cannot justify in whole, under s.22 it can justify in part. It can plead that, insofar as the words meant that the individual had been convicted twice, these were true, and thus bring the two convictions before a jury. This rule is based on the proposition that the law does not permit a defendant, in mitigation of damages, to adduce evidence which actually tends to justification. But the law permits this evidence to be adduced, and to be pleaded in partial justification. (See Plato Films Limited v. Speidel [1961] AC 1090, at 1141). Section 22 is, therefore, an essential requisite as part of the fairness of defamation trials. I think it undesirable to assume that some part of a mandatory procedure was complied with, when, for all one knows, that assumption may be ill-founded.

13. The plaintiff’s argument suffers from this logical flaw. It asks the Court, effectively, to set to one side the fact that there was a failure on the part of the jury to answer one of the questions properly deemed essential for the fair resolution of the issues between the parties. That question, dealing with partial justification, was raised in Q2. But the logic of the argument, if extended, would be that it would be permissible to set to one side the failure of the jury to answer some other equally vital question. Q2 and the issue it raises cannot, in some sense, be “demoted” in importance. The question represented an essential part of the newspaper’s defence. The task of the jury, having been charged by the judge, was to address and be seen to have addressed each of the issues which, in law, they were under a duty to address. The omission to answer the question was, to my mind, fatal.

14. In the appeal of this case to the Court of Appeal, Hogan J., put the matter very succinctly. He said:

“102. …It is true that, as Mr. Doyle S.C. (counsel for the plaintiff) urged in the course of the appeal, the third question on the issue paper is premised on the assumption that the jury will have answered the second question in the affirmative (“If the answer to question 2 is ‘yes’, assess damages…”). It is quite possible that the jury well understood this and that by answering question 3 and assessing damages, they were effectively stating that the plaintiff's reputation was nonetheless affected by the publication of the drug dealing and loan sharking allegations even if it was also shown that he was a criminal and a tax cheat.

103. This may well represent what the jury were thinking when they proceeded to answer question 3 without having first answered question 2. The fact remains, however, that it is quite impossible to know how or why the jury failed in terms to answer an essential question which they were required by law to answer. Quite independently of any other consideration this in itself would have been enough to justify the setting aside of the jury verdict, as it cannot be said that the jury returned a verdict in accordance with law or that they gave any consideration to the implications of a defence which the law afforded to the newspaper.” (Emphasis added)

16. The issue as to the jury’s intention is not resolved by reference to counsel’s speeches or the judge’s charge. The judge simply said “then we go on to Q2 which superficially, as has already been pointed out to you, seems a little bit complicated. But it’s really not. If the answer to one or more parts of Q1 is no, but the answer to one or more parts of Q1 is yes, do the words not prove(d) to be true materially injure the plaintiff’s reputation, having regard to the truth of the remaining charges?” But the nature of the charge, although adequate in formal terms was not such as would enable this Court to preclude the possibility that there may indeed have been a misunderstanding or omission, and that the jury may indeed have taken a shortcut, or concluded that the Question 2 issue was, as the judge put it, “a little bit complicated”. I accept this can be portrayed as a strict view; but it arises on an issue of principle, that is lawfulness, the proposed answer to which, in turn, constrains this Court to embark on its own findings of fact in the absence of any answer to the question.

17. With all respect to the jury, it is relevant to point out that on the established jurisprudence of the Court there is consensus that the jury verdict is to be set aside on the basis that there is no objective link between the defamation and the award, and that it is a verdict which no reasonable jury could have arrived at. (Barrett v. Independent Newspapers [1986] I.R. 13; De Rossa v. Independent Newspapers [1999] 4 I.R. 432). The course of action proposed requires a discomfiting degree of approbation and disapprobation. On the one hand, one is forced to assume that a jury, which acted unreasonably in awarding a disproportionate sum by way of damages, in fact, and on the other, acted “reasonably” in interpreting the issue paper in such a way as to allow a coercive inference, an answer to Q2 was unnecessary.

18. The necessity to resolve factual issues at this defamation action must be understood in light of the fact that the plaintiff sought damages on the basis, inter alia, that the article described him as a criminal and a tax cheat. But somewhat remarkably, although his record of previous convictions had been agreed between his own counsel and counsel for the defendant, the plaintiff himself when he testified denied that some of those agreed convictions concerned him at all. A reasonable jury might well have remarked, among other things, upon the apparent discrepancy between counsel’s opening of the case and the plaintiff’s own evidence, and taken this into account in weighing up and balancing process which is essential in determining s.22 questions. We simply do not know. Many issues doubtless come into the equation when a jury is engaged in its deliberation on an issue of fact. The process can indeed be opaque, but that does not invalidate it.

19. This libel action was, quintessentially, one where the plaintiff’s own credibility as a witness was at stake. One of the primary issues was whether the plaintiff had given the jury a credible account of the events in London, and their sequel. Whether or not a witness is credible is a question of fact. (McCaughey v. IBRC & Another [2013] IESC 17). It is now almost trite to say that appeal courts do not have the opportunity of seeing witnesses when they are testifying. The observations of Henchy J. in Northern Bank Finance Corporation v. Charleton [1979] I.R. 49, at page 189, are as apposite regarding the jury in this case as were his remarks on the role of the trial judge in Northern Bank. It is a jury which experiences the mood of the courtroom, the demeanour of the witnesses, and other features of the trial, which may be crucially determinative in the ascertainment of the facts. A fortiori, this is true where it is the highly nuanced role of the jury to assess whether material was defamatory, whether there was a defence, whether damages should be awarded, and the measure of such damages. The jurors were to carry out this process bringing to bear all their experience in the outside “real” world. It is they who were to be the essential fact finders on the Q2 issue. The traditional respect due to findings of fact derives in part from the high regard which, historically, was owed to a jury verdict. Bearing in mind all the judicial observations as to the “arid pages of the transcript”, and the inability of an appeal court to put itself in the role of a trial judge, it is hard to see that this Court should now assess the nature, tenor and character of the factual testimony on both sides of this hard fought case.

20. For these reasons, I think it inappropriate for this Court to, as it were, answer Question 2 itself, as if it were the jury. It leads to further difficulties. The issue in this Court was not a matter of whether a jury finding was perverse, or self-contradictory, which might be simpler for this Court to resolve. Here there is simply no definitive answer to Q2, and the course of action proposed logically thereafter involves a number of steps. Constrained to make a supposition on what the jury must have intended, it then becomes necessary to address factual s.22 questions not addressed by the jury, and later then to determine that the same jury acted unreasonably in making the award of damages. I find myself, therefore, in agreement with the observations of Hogan J. who, in the Court of Appeal, concluded that:

“Quite independently of any other consideration this in itself would have been enough to justify the setting aside of the jury verdict, as it cannot be said that the jury returned a verdict in accordance with law or that they gave any consideration to the implications of a defence which the law afforded to the newspaper.”

Damages
22. It is necessary now to turn to the linked damages issue. To what damages was the plaintiff entitled? It is noteworthy that counsel for the plaintiff submitted that the damages in this case should come within the top range of damages awards. He resolutely defended the jury award of €900,000, and, indeed, went further, submitting that, but for the plaintiff’s own somewhat tarnished record and reputation, and his previous convictions as a younger man, the award of damages could justifiably have been some hundreds of thousands higher, that is to say, significantly in excess of €1 million. This would have put this case very near the highest defamation award ever made.

23. It is no disrespect to the force of these submissions to say that no member of the Court accepts this proposition. Each member of the Court accepts the award is too high. But the true question is as to what is the appropriate order, in light of the failure to answer Q2? There is strong authority to the effect that a special regard should be had to jury awards. The substituted award would be a very substantial reduction of the plaintiff’s own estimate of the worth of the case. The suggested margin between the actual and potential full award, as submitted by counsel for the plaintiff, again shows the fundamental importance of Q2. Even on the plaintiff’s own case, the fact of his tarnished reputation could be seen as having a value running into hundreds of thousands of Euro in the jury award. This, too, is surely a jury issue.

24. In Barrett v. Independent Newspapers Limited, cited earlier, Finlay C.J. pointed out that, while a jury’s assessment of damages could be disturbed on appeal, “it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.”

25. Hamilton C.J. expressly approved this passage in his judgment in De Rossa v. Independent Newspapers [1999] 4 I.R. 432. In De Rossa, Hamilton C.J., having quoted Bingham M.R. in John v. MG.N Ltd. [1996] QB 586, to the same effect, and approved Finlay C.J.’s statement, quoted above, went on to hold that an appeal court “is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.” (page 463). (See also the judgment of this Court in O’Brien v. MGN [2001] 2 I.R. 1; Crofter Properties Limited v. Genport Limited (No. 2) [2005] 4 I.R. 28; Leech v. Independent Newspapers (Ireland) Limited [2014] IESC 79, Supreme Court, Unreported, 12th December, 2014).

26. In citing these passages, it is important not to be misunderstood. A rational, structured approach to damages awards in defamation claims is necessary. There can be no issue as to the propriety of a trial judge giving clear guidelines and everyday comparisons to a jury. But none of this is to the point in the instant case.

27. Actually, in the circumstances of this case, on the one hand, a strong case could be made for a significantly higher substitute award than that now proposed. The newspaper story was run while the plaintiff was actually in custody. The plaintiff was never charged with any offence, having been characterised as “King Rat” in the article. Each of the gardai who testified denied under oath that they were the source of the leak, which was splashed over the front page, and other pages, of the newspaper. The mystery as to how the story got into the newspapers was not resolved. The plaintiff’s own evidence was to the effect that he was shunned in his locality, that he was barred from pubs, that posters were put up denouncing him. How all this actually affected the plaintiff is also, surely, a matter which can only properly be determined by actually seeing and hearing the respective cases on both sides.

28. But, these observations are not to be understood as naïve. The subtext of the defendant’s case was that the plaintiff’s narrative was lacking in credibility, that he had engaged in unlawful activities in undertaking the journey to London, and that the jury should so conclude. One could easily imagine an unconvinced jury giving a low award, or even no award.

29. In short, I am not persuaded that this is a case to steer a middle course, no matter what the attractions. Here the outcome proposed means the plaintiff is denied the vast preponderance of the jury award on foot of a consideration of the transcript, which the authorities of this Court establish is a poor substitute for the views of the primary finders of fact, that is, the jury. By the same token, the newspaper is denied the order which it sought, that is, a complete retrial. It is denied the opportunity to challenge the plaintiff’s narrative before a jury.

30. While one can readily see the advantages in this Court substituting its own award, I think the course of action adopted begs a further question. Taken to its ultimate logic, I am apprehensive that the award by this Court is capable of being portrayed by critics of the jury system as begging the question of whether juries are truly necessary in defamation proceedings?

31. In the circumstances, therefore, I would decline to address the issue of damages. It seems to me that this is a situation where the entire matter should be remitted for a new trial. There is, of course, some irony in that this course of action is being advocated by a newspaper, and that it is the newspaper which is contending that this Court should not substitute its own view regarding damages for that of the jury. Other media representatives have expressed views to the contrary. But that is not the point. What is necessary is not only that justice be done to both sides; but that justice be seen to be done, in the manner best suited to carry out the necessary task of vindicating the rights engaged on both sides.